Elite Roads Pty Ltd

[2021] FWCA 4368

[2021] FWCA 4368

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Elite Roads Pty Ltd
(AG2021/5960)

ELITE ROADS PTY LTD (PROFILING) ENTERPRISE AGREEMENT 2021

Asphalt industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 22 JULY 2021

Application for approval of the Elite Roads Pty Ltd (Profiling) Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Elite Roads Pty Ltd (Profiling) Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Elite Roads Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] I note that several clauses of the Agreement may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 5.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] Question 20 on the Form F17 indicates that employees were provided with details of vote on 18 June 2021, with the vote taking place on the 25 June 2021. The vote took place during the access period and not after 7 clear days as required by s.180(3) of the Act. Further, the ‘Proposed Enterprise Agreement Variation – Access Period & Vote’ sent to employees via email on 18 June 2021 provided the time voting was to commence however, did not state the date on which voting was to commence. The notice did however indicate the intended expiration of the access period and the time and date on which the ballot period would end.

[6] Notwithstanding the above, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, these constitute minor procedural or technical errors for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 July 2021. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

 1   [2019] FWCFB 318.

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